Opinion
No. 62971-9-I.
Filed: February 22, 2011.
In-chambers conferences that address ministerial or purely legal matters and that do not involve the taking of evidence, jury selection or other factual determinations do not implicate the public trial right. Here, the chambers conferences addressed ministerial matters involving trial preparation and a sidebar issue involving the legal scope of the prosecutor's direct examination. Thus, the public trial right was not implicated and we affirm in part.
FACTS
Nicolai Golodiuc and Nataliya Visharenko were married in 2003. They had two sons together and Visharenko also had a daughter from a previous relationship, L.V. Golodiuc, Visharenko and the two boys lived together in an apartment. L.V. lived mostly with her grandmother, Visharenko's mother, in another apartment in the same building. There was a history of violence in the marriage and Golodiuc and Visharenko eventually separated. Visharenko continued to live in the apartment and no contact orders were issued that prohibited Golodiuc from contacting either Visharenko or L.V.
On December 2, 2007, Visharenko called 911 to report that Golodiuc had been at her apartment. She reported that she had come home the night before and found him asleep with another woman. She then went to her mother's apartment, spent the night there and went back to her apartment the next morning. When she returned to her mother's apartment, she was crying and told L.V. that she found Golodiuc and the woman still in the apartment and asked them to leave. She said that on their way out, Golodiuc grabbed a knife and stabbed Visharenko in the finger. Visharenko also showed L.V. a cut on her finger. When the police arrived, they spoke with Visharenko, took pictures and told her to go the hospital for her finger injury, but she declined to go.
On January 22, 2008, Visharenko reported that she came home that evening and found Golodiuc in her apartment sitting on the couch. She called 911 and he left. Police responded but did not locate him.
On February 17, 2008, police responded to a call at the apartment building and met Visharenko and L.V. in the building lobby. Visharenko was bloody with injuries to her face and other parts of her body. Visharenko spoke in broken English to the officers and L.V. helped her explain what happened. They told police that the person who was responsible for the injuries was in Visharenko's apartment. When the officers went to the apartment, they found Golodiuc asleep. He denied assaulting Visharenko and was arrested.
Visharenko went to the hospital and was treated by Dr. Marc DiJulio, the emergency room physician. Visharenko told Dr. DiJulio that she had been hit and kicked multiple times by her estranged husband over a two-hour period. She also told him there was a period of time she could not recall, but remembered being awakened when her husband threw water on her and then continued the assault. According to Dr. DiJulio, her injuries were consistent with being struck in the face and a CT (computed tomography) scan showed that her nose was broken in a manner consistent with being hit directly in the face.
Following his arrest for the assault, Golodiuc sent Visharenko a series of letters while he was in custody at the King County jail. The letters were written in Russian and urged Visharenko not to cooperate with the prosecution. L.V. found the letters in her mother's room and turned them over to the police.
The State charged Golodiuc with two counts of felony violation of a no contact order for the December 2007 and January 2008 incidents (counts I and II), burglary and assault for the February 2008 incident (counts III and IV), and four counts of witness tampering based on the letters sent from the jail (counts V, VI, VII, and VIII). At the close of the State's case, the trial court dismissed count II for insufficient evidence. The jury found Golodiuc guilty of the remaining counts. The trial court imposed standard range sentences on each count. Golodiuc appeals.
After the verdict, Golodiuc agreed to plead guilty to a misdemeanor violation of a no contact order in exchange for the State's dismissal of the aggravating factors. CP 126. The State then filed an amended information adding the misdemeanor charge as count II and Golodiuc entered a plea to that charge.
ANALYSIS
I. Public Trial Right
Golodiuc first contends that his right to a public trial was violated when the court met with counsel in chambers to discuss pretrial matters and a sidebar that arose during trial. He argues that by doing so, the court closed the courtroom to the public without first engaging in the inquiry required by State v. Bone-Club and determining whether a courtroom closure was justified. The State contends that the in-chambers conferences did not amount to court proceedings that implicate the right to a public trial and, therefore, there was no courtroom closure triggering the need for a Bone-Club inquiry. We agree.
128 Wn.2d 254, 906 P.2d 325 (1995). In Bone-Club, the court set forth the following factors that a trial court must consider on the record before ordering a courtroom closure:
1. The proponent of closure or sealing must make some showing [of a compelling state interest], and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a "serious and imminent threat" to that right.
2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.
3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.
4. The court must weigh the competing interests of the proponent of closure and the public.
5. The order must be no broader in its application or duration than necessary to serve its purpose.
128 Wn.2d at 258-59.
Both the United States and Washington Constitutions protect a criminal defendant's right to a public trial. The right is one "created for the benefit of the defendant." Failure to conduct the Bone-Club inquiry before closing a courtroom violates the right to a public trial and results in reversal for a new trial.
U.S. Const. amend. VI; Wash. Const. art. I, § 22.
Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (citation omitted).
State v. Brightman, 155 Wn.2d 506, 518, 122 P.3d 150 (2005).
"The public trial right applies to the evidentiary phases of the trial, and to other `adversary proceedings.' . . . Thus, a defendant has a right to an open court whenever evidence is taken, during a suppression hearing, and during voir dire." But a defendant does not have a right to a public hearing "on purely ministerial or legal issues that do not require the resolution of disputed facts."
State v. Rivera, 108 Wn. App. 645, 652-53, 32 P.2d 292 (2001) (quoting Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997); Press-Enter. Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)).
State v. Sadler, 147 Wn. App. 97, 114, 193 P.3d 1108 (2008); see also Rivera, 108 Wn. App. at 653.
As our courts have recognized, generally chambers conferences are not part of a trial and are not a critical stage of the proceedings. Thus, "[o]pening such conferences to the public would not further the aims of the public trial guarantee," and the defendant does not have a right to be present during a chambers conference. Consequently, "[b]ecause the defendant has no constitutional right to be present during a chamber conference, there can be no constitutional right to have the public present." In State v. Koss, and State v. Sublett, the court held that in-chambers conferences to discuss jury questions about the court's instructions did not violate the public trial right because they involved purely legal issues that did not require the resolution of disputed facts. And most recently in State v. Castro, the court held that a defendant's public trial rights were not implicated when the court decided pretrial motions on legal matters in chambers and later put the rulings on the record to give counsel an opportunity to object. Similarly here, the chambers conferences did not violate the right to a public trial.
In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994); Rivera, 108 Wn. App. at 653.
Rivera, 108 Wn. App. at 653; State v. Sublett, 156 Wn. App. 160, 182, 231 P.3d 231 (2010).
Rivera, 108 Wn. App. at 653.
___ Wn. App. ___, 241 P.3d 415 (2010).
156 Wn. App. 160, 182, 231 P.3d 231 (2010).
No. 28885-4-III, 2011 WL 71447 (Wash. Ct. App. January 11, 2011).
Another recent opinion of this court, In re Ticeson, No. 63122-5-I, 2011 WL 167476, at *4 (Wash. Ct. App. January 18, 2011), also held that in-chambers conferences addressing purely legal matters during a sexually violent predator trial did not violate the public right to an open proceeding under article I, section 10 of the Washington Constitution. Citing Koss and Sadler, the court reiterated that "[t]he resolution of `"purely ministerial or legal issues that do not require the resolution of disputed facts"' is not an adversary proceeding" to which the public trial right applies.
The first in-chambers conference was held before the parties proceeded with pretrial motions. Following the conference, the parties appeared on the record and the court stated:
The record should reflect that before we went on the record, counsel and I met in chambers briefly to see where we were with regard to actually starting this case in earnest. And it sounds to me like we don't have too many large areas of dispute that we need to resolve by way of pretrial motion. There's a few things that we certainly need to talk about. There's a few things that we need to refine a little bit. I think everyone was in agreement on that.
Frankly [the prosecutor] has been tied up in trial. I don't think he's had an opportunity to talk to [defense counsel] too much about what his intentions were with regard to the evidence he intends to present. So I think we can refine that a little bit.
The court then went on to rule on the parties' pretrial motions on the record.
The court also held a chambers conference with counsel to discuss a sidebar issue that arose during trial. During direct examination of Visharenko, the prosecutor called a sidebar, seeking to inquire about prior acts of domestic violence based on Visharenko's recantation and inability to remember. After a brief sidebar discussion, the court dismissed the jury for a break. During the recess, the parties conferred with the court in chambers and the court then went on the record to state the substance of the conference:
I wanted to give you an opportunity to put on the record what you were requesting. It all happened in chambers. And absent some acknowledgement on the record, nobody is going to know what we're talking about. Why don't you go ahead and put your request on the record and then we will go from there.
The prosecutor proceeded to argue why the court should allow testimony about prior acts of domestic violence. The court then addressed the issue and denied the State's request to elicit this evidence.
Golodiuc fails to show that any of these meetings in chambers implicated his right to a public trial, necessitating a Bone-Club inquiry. Neither chambers conference was an adversarial proceeding in which evidence was taken, the jury was selected or other factual or credibility determinations were made. The pretrial conference addressed typical ministerial matters involving trial preparation, such as witness lists, pretrial motions to be heard, order of motions, particular issues to be raised in the motions and resolution of any issues by agreement of the parties. The discussion in chambers about the sidebar simply involved fleshing out the substance of the sidebar so the parties could be prepared to argue it on the record. There is no indication in the record that the court took evidence or otherwise made any factual determinations. In fact, the court did not make any legal determinations until the parties were on the record.
Golodiuc points to the fact that the court reviewed a memorandum during the sidebar conference, but fails to show how this implicates the public trial right. Rather, the court was simply stating for the record that the prosecutor submitted a memorandum on the issue and advised the prosecutor to file it as part of the record. While the court stated that they "chatted about this in chambers," the record reflects that the prosecutor presented argument on the record and the court did not rule on the issue until after hearing argument from the parties and did so on the record. In any event, as proceedings on purely legal matters, they do not implicate the public trial right.
The court stated, "The record should reflect that you provided me about a three and a half page memo that I assume you filed the original? . . . Let's get that filed so that the argument is preserved. I will say for the record that we chatted about this in chambers."
II. Hearsay Statements
Golodiuc next challenges the admission of hearsay statements as lacking sufficient foundation because the State did not establish that they were actually made by Visharenko, as opposed to the interpreter or L.V. The State contends that Golodiuc waived this foundational objection by failing to assert it at trial. We agree.
At trial, Dr. DiJulio testified as follows about statements Visharenko and L.V. made to him while he treated Visharenko:
Q: What were you told by the patient?
[DEFENSE COUNSEL]: Objection as to hearsay.
THE COURT: I'll sustain, counsel.
Q: Do you recall or according to your notes, is there anything in your notes that tell you what she told you about what happened to her?
A: According to my note, the patient stated she was assaulted —
[DEFENSE COUNSEL]: Objection as to hearsay.
THE COURT: I'll sustain, counsel. Perhaps you can lay some foundation as to whether this came directly from her or through some intermediary or something of the sort. Thanks. Go ahead.
Q: Let me ask you: If you were to obtain information through a third party other than the patient, would you have noted that in your medical report, in the chart? A: Most of the time — for example, if a paramedic said that the patient told them something, I would confirm that with the patient. So in my notes it wouldn't say, well, [emergency medical services (EMS)] personnel said the patient said this and she verified it. I would just say the patient said this because she did. I mean, the EMS guy just directed me where to go, and I confirm it with the patient.
Q: So let me ask you that question. What information did you confirm with the patient?
A: Well, everything in my record. If I made the statement that states she was assaulted, it means she stated she was assaulted.
Q: That's what I want to ask you about. What exactly did she confirm with you in your conversation with her as to what happened to her? A: She stated that she was assaulted by her estranged spouse —
[DEFENSE COUNSEL]: I'm going to object, again, as to hearsay, Your Honor.
THE COURT: I'm going to overrule the objection. Go ahead.
Defense counsel then called a sidebar and the court again overruled the objection.
Later, outside the jury's presence, the court put on the record the substance of the sidebar, stating:
[Defense counsel], you had objected to testimony by Dr. DiJulio indicating that Ms. Visharenko told him she was assaulted by her estranged spouse. I want to give you an opportunity to make a record on that objection. I heard more at sidebar than we got on the record so far. Your argument was basically predicated on State v. Redmond, 150 Wn.2d [489, 78 P.3d 1001], a 2003 case. Why don't you make a record on that, counsel?
Defense counsel then stated:
Your Honor, under State v. Redmond, it's a recent Washington Supreme Court case from 2003. The court noted that it was error to have admitted statements made to a physician identifying an assailant under the hearsay exception that's made for statements [made] for purposes of medical diagnosis.
The court disagreed that Redmond applied, concluding that the relevant case law on this "is settled and has been for a long time."
The court noted that Redmond did not involve family domestic violence and that other cases carved out an exception for statements of attribution of fault in domestic violence cases.
To challenge a trial court's admission of evidence on appeal, a party must raise a timely and specific objection at trial. "When the trial court overrules a specific objection and admits evidence, [the appellate court] will not reverse on the basis that the evidence should have been excluded under a different rule which could have been, but was not, argued at trial."
State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007).
State v. Korum, 157 Wn.2d 614, 648, 141 P.3d 13 (2006), review denied, 169 Wn.2d 1002 (2010) (citations omitted).
Here, Golodiuc did not object on the foundational grounds he now asserts on appeal. Rather, the record shows that he objected to Dr. DiJulio's testimony as simply "hearsay," and called a sidebar when the objection was overruled. Golodiuc contends that this hearsay objection included the foundation objection, noting that it was made after the court instructed the prosecutor to provide a foundation and the prosecutor attempted to do so. But in fact, the record of the sidebar reveals that this was not the basis for Golodiuc's hearsay objection. Rather, the objection was that the identity of a perpetrator was not relevant to treatment for purposes of the hearsay exception for statements made for medical diagnosis. Thus, Golodiuc did not properly preserve the foundation objection he now asserts on appeal.
III. Witness Tampering Counts
Golodiuc next contends that the trial court erred by failing to give a unanimity instruction on the witness tampering charges because there was not sufficient evidence of each alternative means for each count. Unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. Thus, when there are alternative means of committing a crime and the jury is instructed on each means, either (1) substantial evidence must support each alternative means on which evidence or argument was presented, or (2) evidence and argument must have only been presented on one means.
State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988).
State v. Lobe, 140 Wn. App. 897, 905, 167 P.3d 627 (2007).
The crime of witness tampering may be committed by three alternative means: attempting to induce a person to (1) testify falsely or withhold testimony, (2) absent himself or herself from an official proceeding, or (3) withhold information from a law enforcement agency. The State concedes that the evidence was insufficient to support all three alternative means on counts VI and VII and that they should be reversed. Thus, we need only determine whether there was sufficient evidence of each alternative means on counts V and VIII and conclude that the evidence was sufficient on both counts.
RCW 9A.72.120(1)(a)-(c).
Count V was based on the following letter dated March 25:
Hello, mamuska. I don't know. What are we going to do next? As you might remember, I asked you not to call. And now — now we have to correct errors, mistakes. I will be locked up for half a year. Then they might add to it. But everything depends on you. You know that you should not show up in court. And you shouldn't talk to anyone on the phone. And, also, you have to change your home phone number right away. Call the company and ask for another number. This has to be done urgently. Then we will be able to talk on the phone. You will write the phone number later.
. . . .
Well, if you decided that you don't need me anymore, then confirm your testimony in court, and I will get two years. And they will deport me. But, of course, it is much better if I could be with kids.
This letter contained sufficient evidence of each alternative means. Golodiuc encouraged Visharenko to (1) absent herself from an official proceeding by telling her she "should not show up in court," (2) withhold her testimony by warning that he will "get two years" and will be deported if she confirms her testimony in court, and (3) to withhold information from law enforcement by urging her not to talk to anyone on the phone. While he did not specifically say "law enforcement," a reasonable inference is that "anyone" includes law enforcement.
Count VIII was based on the following letter:
Why don't you write to me a reply? I need to know what is your mood and what are you planning to do so that I know how to behave myself at the trial. I can get quite a lot for each of your calls, up to one year, and you call too much. So it's about ten years. But so far they didn't consider half of it. They just left only five. And I have to prove somehow that at least on three or four cases — three or four incidents, I was not — it was not my fault. Maybe I will get just one year. And if God helps me, maybe they won't deport me.
I'm asking you one more time; try not to testify against me even if they try to threaten you that they will lock you up in jail for giving false testimony. Don't believe them. The only thing they can do is to fine you. But they will threaten you for sure. You'll see. It will be even better if you change your phone number and don't talk to anyone. This will help me a lot.
Write to me how are you doing, how are the kids, how is the work. I'm waiting for your letter. I kiss all of you. Nicolai. My address is on the envelope. And also let me know if they already talked to you and what did you tell them.
And, also, did they take pictures of you on the day I was detained? In case just — in case just tell them that on the night you were in the bar and some black woman beat you up and you were very angry. And when you came home, you saw me at home, that I was asleep, and decided to have your revenge because I didn't come to the bar. So you called and said that I beat you up. This is the only option that can help you if you will be at the trial.
This letter also established sufficient evidence of all three alternate means of witness tampering. Golodiuc encouraged Visharenko to (1) not show up in court by asking her "not to testify against [him];" (2) withhold information from law enforcement by asking her not to talk "to anyone;" and (3) fabricate a story about being beat up by someone else at a bar, clearly a request to falsely testify. Thus, a unanimity instruction was not required on counts V and VIII.
But as Golodiuc further contends in a supplemental brief, the recent Washington Supreme Court opinion in State v. Hall requires reversal of all but one of the witness tampering convictions. In Hall, the court held that the unit of prosecution for witness tampering is generally per witness per proceeding when, as here, the methods of tampering did not vary. The State concedes that under Hall, the witness tampering charges here constituted a single unit of prosecution and requests resentencing on only one count of witness tampering. Accordingly, we reverse all but one count and remand for resentencing.
168 Wn.2d 726, 230 P.3d 1048 (2010).
IV. Statement of Additional Grounds
Finally, Golodiuc contends in a statement of additional grounds that L.V.'s taking of the letters he sent to her mother was an illegal search and seizure under the Washington Constitution because L.V. did not have permission from her mother to take them from the apartment. But because the constitutional right to be free from unreasonable searches and seizures applies only to searches conducted by the state or other law enforcement, Golodiuc fails to show that L.V.'s taking of the letters amounts to a constitutional violation. Even if he could show that the search was conducted by a state actor, Golodiuc lacks standing to challenge the search because it was conducted in Visharenko's home, a place in which he fails to show he had a reasonable expectation of privacy.
State v. Carter, 151 Wn.2d 118, 124, 85 P.3d 887 (2004) ("As a general rule, neither state nor federal constitutional protections against unreasonable searches and seizures are implicated without state action.").
See State v. Walker, 136 Wn.2d 678, 685, 965 P.2d 1079 (1998) (" Fourth Amendment rights are personal rights that cannot be vicariously asserted.")
We affirm in part, reverse in part, and remand for resentencing on one count of witness tampering.
WE CONCUR: